Citation Nr: 1118989
Decision Date: 05/17/11 Archive Date: 05/26/11
DOCKET NO. 05-33 484 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's spouse
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The Veteran (appellant) served on active duty from October 1961 to October 1965.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
In June 2007, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record.
In September 2007 and again in May 2008, the case was remanded for additional development. The case has been returned to the Board and is ready for further review.
FINDING OF FACT
The Veteran's low back disorder is related to his inservice low back injury.
CONCLUSION OF LAW
The criteria for service connection for a low back disorder have been met. See 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.
Service Connection
Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Stated somewhat differently, direct service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in- service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Thus, service connection is established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).
Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b).
Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d).
Where the determinative issue involves medical causation or medical diagnosis, there generally must be competent evidence to the effect that the claim is plausible; lay assertions regarding this generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998).
There are exceptions to this general rule, however. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007).
Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Discussion
The appellant contends that he currently suffers from a low back disorder as a result of an injury sustained during active duty service. Specifically, the appellant alleges that he injured his back in service and was diagnosed with muscle strain. He argues that his currently diagnosed low back disorder is related to that inservice injury.
With respect to Shedden element (1), current diagnosis, the Board notes that the appellant has been diagnosed with degenerative disk disease. See VA examination of July 2003. Shedden element (1) has been satisfied. See Shedden, supra.
Review of the appellant's service records reveals that in July 1963, he was admitted to a hospital in Japan with an acute lumbar strain. It was noted that he sustained the sprain lifting a 90 pound tool box. He complained that the day after, he was unable to move his back more than a few degrees without pain. X-rays were normal. He was hospitalized for ten days and the diagnosis was, acute muscle strain, without neurological symptoms. Therefore, the appellant did have an inservice injury while on active duty. Thus, Shedden element (2), in-service disease or injury, has been satisfied. See Shedden, supra. Therefore, this claim will turn on whether there is a nexus between the current findings and the inservice injury.
The Evidence
In August 2005, a VA doctor, who had examined the Veteran in July 2003, offered a memorandum with a medical opinion. It was noted that the claims file was reviewed including the service records. It was the examiner's opinion that the current back disorder was not caused or the result of the back strain suffered in the service. The examiner listed the evidence reviewed which consisted of the service records. The examiner reported that at the time of examination of the Veteran by VA in July 2003, the Veteran was 60 years old which is consistent with any degenerative changes to develop in the skeletal structure. The clinician went on to say that the changes in the spine are multilevel and not in the line with one specific injury more than 40 years ago. It was noted that the Veteran had his back surgery in 1975 according to the history given by the Veteran and this is more than 12 years after the incident while in the service.
In a December 2004 letter, a private examiner, Dr. P.C., stated that the Veteran provided him with records that indicate that he has a herniated disc, L5lS1 on the right. The examiner reported that the symptoms the Veteran had in 1972 when he was treated by him for lumbar disc herniation are the same as he had suffered in 1965. It was noted that there was a disc hiatus when the symptoms cleared in 1965 but nevertheless it is certainly possible that the disc originally herniated in 1965 and remained quiescent for seven years and then recurred.
In a June11, 2007 letter, a private examiner, Dr. K. D. stated that the Veteran has been a patient since April 1993 and that he has had chronic back pain since the early sixties. The examiner reported that based on the Veteran's history and exam findings, it was his opinion that the injury sustained while on duty in the service has led the Veteran to suffer from the effects of chronic back pain.
In a June 14, 2007 letter a private doctor, J.C., DC stated that he began treating the Veteran around 1976 for low back pain which the Veteran attributed to an injury while on active duty in the U.S. Air Force in 1963. It was noted that the Veteran reported that despite seeing medical personnel the pain persisted. It was noted that the Veteran was seen by this examiner into the 1980's with no resolution of his condition. The examiner opined that most likely since the Veteran experienced no discomfort prior, the 1963 injury suffered in the military is the cause of his chronic pain.
A private examiner, Dr. L. S., MD, stated in a June 16, 2007 letter that the Veteran has been under his care since 2003 with chronic back and neck pain. The Veteran reported to him that he has had pain since an accident that occurred during his service. The doctor opined that more likely than not the injury the Veteran sustained while in the service lead to many of the health problems that the Veteran now has.
A friend of the Veteran submitted a statement in July 2007 in which she stated that she and the Veteran have been friends since 1949. She stated that after service the Veteran and she worked together and he complained of back pain. Also in a letter received by VA in July 2007, the Veteran's step mother stated that the Veteran had no problems with his back prior to service and that upon his return, he was seen by a doctor for back complaints with only temporary relief.
In an October 2007 addendum opinion, the aforementioned VA doctor reported that he had again reviewed the claims file with particular attention to evidence added to the file since his prior decision and that he had not changed his mind regarding his August 2005 finding.
In a March 2009 opinion, the aforementioned VA examiner stated that he had reviewed the file and that it was his opinion that it is not as least as likely as not that the Veteran's in-service low back complaint and clinical findings were early manifestations of any currently diagnosed low back disability. The rationale for the opinion was that the in-service incident was in 1963 and there were only a few records in the service medical file of the incident and treatment. It was stated that thereafter there was no mention of any history of back trouble until 1972 which was relieved in two weeks. It was stated that the more current information reflects that the Veteran has degenerative changes in the cervical spine area as well as multiple areas of the lumbar spine indicating a more generalized nature of the degenerative changes.
In a June 10, 2010 letter a private examiner, P. C., MD stated that he reviewed his records from 1972 regarding treatment of the Veteran. It was noted that he treated the Veteran in 1972 for a herniated disc on the right. The examiner stated that it was his impression that after reviewing the records of the herniated disk for which the Veteran was treated in 1972 actually occurred form an injury which he suffered in 1965. The examiner stated that the Veteran was asymptomatic between 1965 and 1972 but it is not at all uncommon for a herniated disc to cause symptoms, have symptoms clear and then recur months or years down the road. It was reported that the Veteran's symptoms were the same in 1972 as they had been in 1965 and the examiner indicated that he believed that they were the result of the disk herniation at L5-S1 on the right side which occurred in 1965.
With respect to crucial Shedden element (3), clearly, the opinions offered by the VA examiner and the private clinicians are conflicting. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
All of the opinions of record in this claim provided an explanation for the findings offered. While the private examiners did not have the claims file, this is not fatal to the claim. A medical finding may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). And the Board may not simply disregard a medical opinion solely on the rationale that the medical opinion was based upon a history given by the Veteran. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on Veteran's statement renders a medical report incredible only if the Board rejects the statement of the Veteran). Here the history provided by the Veteran is supported by the clinical record. Further the VA examiner has opined that it was less likely than not that the appellant currently suffers from a low back disorder due to service. Part of the rationale for this opinion was that the appellant did not report suffering until 1972, several years after discharge from service. The Board notes, however, the appellant clearly stated that he had suffered from back pain since the time of his active duty service. The examiner's reasoning failed to account for the Veteran's competent and credible statements as to continuity of symptoms ever since service. This lessens the probative value of the finding. Thus as to the medical evidence, the Board finds that none is more persuasive than any other and that therefore resolving reasonable doubt in favor of the Veteran service connection is warranted.
Additionally it is noted that the Veteran may also establish the third Shedden element by demonstrating continuity of symptomatology. The Veteran has stated repeatedly that he has had back problems since the inservice injury. The Veteran, as a lay person, is competent to report continuity of symptoms of back problems since military service. Furthermore, there is nothing in the record that indicates the Veteran's statements with respect to back symptoms in service and a continuity of symptoms since service are not credible. In fact, the lay and medical evidence tends to support a continuity of symptoms since service. In this regard, the Veteran has offered credible testimony and lay statements attesting to the fact that he has had back problems since service. Further when he was treated in 1972, he related his complaints to his original injury during service.
Based on the foregoing, the evidence of record reveals that the Veteran provided credible lay evidence of post-service continuity symptomatology of the same symptoms he had during service and medical evidence that shows the Veteran's current diagnosis of degenerative disc disease is related to the post-service symptomatology. See Savage, 10 Vet. App. at 496-97. Accordingly, the evidence is in relative equipoise with respect to whether the Veteran's current back disorder was incurred during active military service. Resolving all reasonable doubt in the Veteran's favor, the claim of entitlement to service connection for a low back disorder is warranted.
ORDER
Service connection for a low back disorder is granted.
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F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs